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With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

If there is one thing we here at Abnormal Use take seriously, it’s college football. Among our writers and contributors and fellow lawyers here at Gallivan, White, & Boyd, P.A., we boast fans of the University of South Carolina, Clemson, Notre Dame, and the University of Texas. When the autumn arrives, you can rest assured that we are talking stats and plays when we are not otherwise toiling or blogging. But, dear readers, imagine our dilemma! We here are perpetrators of a legal blog dedicated to the discussion of products liability! Rarely, if ever, are we permitted to discuss football on these fair pages! But the fates have smiled upon us! The South Carolina Court of Appeals recently issued an opinion dealing with the contentious issue of football stadium parking which, though not exactly related to products liability, is important enough to bring to your attention.

Last week, The Statereported on a family of South Carolina Gamecock fans who sued the University of South Carolina after the university began charging them a hefty $595 for their three parking spots near the fabled Williams-Brice Stadium. The family alleged that they were entitled to free parking by virtue of a $140,000 donation they made in 1987 for a Lifetime Silver Spur membership in the Gamecock Club. The family had parked for free for nearly twenty years until the school began charging for the privilege in 2007. The university attributed the change to its efforts to raise money in order to compete with the facilities of other Southeastern Conference members.

Enter the courts. Following the Rosens’ suit against the university, the trial court granted the university’s motion for summary judgment on the grounds that the relevant written contract was not ambiguous and failed to identify any of its listed privileges as “free.” The trial court also found that as lifetime members, the family, by virtue of its $140,000 donation, only received the “benefit” of maintaining their donor level with the Gamecock Club. During the final week of June, in an unpublished opinion, the South Carolina Court of Appeals reversed, holding that the contract was ambiguous on the parking issue, primarily due to the family’s 20-year history of free parking. See Rosen v. University of South Carolina, No. 2011-UP-331 (June 27, 2011) (unpublished). In so doing, the Court of Appeals, in an opinion authored by Justice Huff, noted:

At oral argument, the University urged this court to consider that the Rosens paid for football tickets, including the increases in football ticket prices, as the “customs, practices, [and] usages” of the Gamecock Club. In considering the payment of ticket prices, we must also consider that during the same time period, the Rosens were not required to pay for the parking spaces. Exhibit A [of the contract, which listed the benefits and priorities the Rosens received] made no distinction in the language used describing the tickets and parking spaces. It neither stated additional charges would apply or that the benefits would be free. When considering “the customs, practices, [and] usages” of the Gamecock Club that despite similar language, the members paid for tickets but did not pay for parking, we find the contracts to be ambiguous as to the parking issue.

The unpublished opinion drew a concurrence and dissent from Justice Pieper, who agreed with the court on the parking issue but not on an unrelated – and far less interesting – beneficiary issue.

We here at Abnormal Use must commend our Court of Appeals. If anyone is willing to pay $140,000 for the privilege of attending college football games, they probably deserve some benefit. (There’s got to be some equitable Latin phrase from jurisprudence echoing that sentiment, right?). Whatever the case, the college football season officially begins in just a month and a half, and we’ll have to resist the urge to blog about that most important of subjects when September arrives.

By now, you have all seen the infamous motion for summary judgment filed by Mark Cuban in the law suit brought by a company alleging that Cuban had mismanaged the Dallas Maverick basketball franchise. The four page motion – which can be found here – is brief and amusing, as it uses imagery in the body of the motion to suggest that the claims against Cuban are baseless. (Apparently, because of its novelty, some law professors are already teaching the motion in class.). On its second page, the motion includes a large photograph – which takes up nearly half the page – of Cuban and the Mavericks celebrating their recent national championship win.

Cuban’s motion reminds us of a post we did late last year encouraging the use of such tactics.

Back then, in a post on modernization of judicial opinions, we noted that attorneys haven’t traditionally included images in motions and wrote as follows:

[T]his is a product of tradition, and attorneys – as authors of briefs which are predominantly prose – are equally at fault. While it is customary to attach photographs as exhibits to memorandum in support of motions, rarely does the attorney actually embed the photograph into the image itself. (This is changing for the better, though.). Thus, the Court, or the reader of the brief, is required to flip from the particular page being read back to the exhibit index and then back to the argument again. It seems that in 2010 this is unnecessary in both written submissions to the Court as well as in the resulting opinions themselves.

These days, with so much information on the Internet, with so many visual learners, with so many maps, photographs, schematics, images, and so many other types of non-prose information, we believe that embedding images into one’s motions is a growing trend and may in fact help and simplify issues. In a products case in which the product at issue is relatively obscure, a photograph accompanied by a brief description can speak volumes more than a lengthy technical treatise. If location is an issue in the case, then a photograph of a scene might be appropriate, provided that the photograph is, of course, favorable to your argument. If the distance between two sites is at issue, then a Google map screen capture can be input into the motion itself to showcase the distance at issue. There are many, many options.

We as lawyers use words by trade, but often we use far too many of them. The readers of our motions and briefs have much to do and many other items to review. We suspect that they, most of all, would appreciate efforts to simplify the briefing process. After all, a picture is worth a thousand words.

I used to think the story was an urban myth. I’ve heard accounts of people who became so wrapped up in a spirited game of Nintendo Wii baseball or bowling that they let go of the controller, only to watch in horror as the strap around their wrist broke and the controller sailed across the living room and hit grandma, or, more likely, smashed their 62-inch high-def, plasma television:

Apparently not. In fact, there are so many people who have had this happen that some smart plaintiff’s lawyer filed a putative class action for them, perhaps hoping to get new $2,000 TVs for everyone. Or at least new $1.99 wrist straps.

On September 23, 2010, the U.S. District Court for the District of Colorado granted summary judgment for Nintendo in Elvig, et al. v. Nintendo of America, Inc., No. 08-CV-02616, 2010 WL 3803814 (D. Colo. Sept. 23, 2010) [PDF] on the class’ claims under the Colorado Consumer Protection Act, as well as theories of breach of implied warranty of merchantability and fitness for a particular purpose. (Hat tip: The Mass Tort Defense Blog)

We believe that Mass Tort Defense has it wrong, however, on the Court’s take on the implied warranty of merchantability claim:

On the implied warranty of merchantability, the court cited the lack of evidence that would indicate what the intended purpose of the strap was. One might plausibly assume, as plaintiff did, that the strap was intended to prevent a controller, inadvertently released by the player during vigorous activity, from hurling towards the player’s television (or towards another player) and causing damage. But equally, one might assume that the strap was simply intended to keep an inadvertently released controller in the vicinity of the player so that it could be easily retrieved and was was never intended to withstand the forces of high-speed controller release.

Honestly, we really hate siding with plaintiffs, especially when they’re running around filing lawsuits based on their own lack of common sense (“If I release this controller in the process of it swinging toward my TV . . . .). But to surmise that the wrist strap is designed to do anything but keep the controller strapped to your wrist is a bit of a stretch.

Still, we like the decision, because it reaffirms our sense of fair play. People who voluntarily join sports teams and leagues can’t complain when they are injured in the normal course of the game or match–indeed, as active members of our own city’s softball law league, we have seen more than our fair share of injuries. The same rule should be applied to full contact video games.

One final note: apparently, at least one TV manufacturer has now designed its television screens to withstand the force of a flying Wii controller. Take a look.

We here at Abnormal Use recently became aware of another successful motion for summary judgement for the defense in a products liability case where the Plaintiffs pled defendants “in the alternative.” See our prior post Filing Suit Against “Alternative” Product Manufacturers is Not Enough on Summary Judgment. This decision was from the state court in Crawford County, Kansas and involved three separate actions involving the same facts. Cabrello v. All Star Fireworks, Inc., et al., No. 2007-CV-164; Robinson v. All Star Fireworks, Inc., No. 2007-CV-165; and Roberts v. All Star Fireworks, Inc., et. al., No. 2007-CV-159.

On August 18, 2005, six individuals at Piedmont Display Fireworks and Fireworks Spectacular were tasked with loading a trailer full of boxes of pre-squibbed aerial fireworks shells. These shells were pre-squibbed with electric matches affixed to their fuses. As the boxes were being loaded, an explosion occurred and three of the six workers were killed. The Kansas Fire Marshal’s office concluded that the explosion was caused as a result of an ignition source inside the last box loaded into the trailer. Electric matches were identified as the source that ignited the fireworks shells. Plaintiffs, however, identified five different defendants that could have supplied the electric matches associated with the explosion.

Plaintiffs filed separate actions against these defendants for negligence, strict liability – product defect, and strict liability – failure to warn. Three defendants filed a motion for summary judgment arguing that Plaintiffs could not prove causation. Plaintiffs actually agreed that they could not prove which defendants’ product was involved but relied upon the theory of alternative liability in Section 433B of the Restatement (Second) of Torts that provides the following:

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

This Kansas court found no cases that indicated that Kansas had adopted this rule and found that even if a Kansas court had adopted this rule, Plaintiffs could not meet the elements required by the theory. To satisfy the elements of the theory, a plaintiff must still prove that the defendants were negligent before any liability can attach. In this case, there was no evidence establishing what products were in the box that initiated the disaster. Therefore, Plaintiffs could not prove which defendant was negligent, and the court granted summary judgment in favor of the defendants.

This opinion noted that 11 states had adopted the Restatement’s alternative liability theory. As in this case, even if a state has adopted the theory of alternative liability, plaintiff still might not survive a motion for summary judgment if he cannot identify what product caused the harm.

In Kahle, the decedent suffered from a intracerebral hemorrhage and was administered a “single low-dose heparin ‘lock flush’ that was allegedly used to ‘flush’ his intravenous line.” After the administration of this dose of heparin, the decedent suffered from heparin-induced thrombocytopenia, gangrene, and deep vein thrombosis. Kahle asserted that the heparin caused these complications,which led to the decedent’s death.

Kahle filed claims for strict liability, negligence, breach of warranty, negligent misrepresentation, fraud by concealment, and wrongful death against a number of defendants that manufactured heparin. During discovery, the hospital that administered the heparin produced documents showing that they purchased heparin products from two defendants, Hospira and APP Pharmaceuticals. However, the administrator of the hospital testified that he could not determine if it was Hospira’s or APP Pharmaceuticals’ product that was administered to the decedent.

Therefore, both Hospira and APP Pharmaceuticals filed motions for summary judgment on the grounds that Kahle failed to establish causation because she failed to prove whose product was administered to the decedent. In response, Kahle argued that “evidence that two manufacturer’s products were used in an area is enough to defeat a defendant’s summary judgment motion.” The Court disagreed finding the evidence Kahle had that established two manufacturers provided heparin products to the hospital “suggests a mere possibility that the decedent may have been exposed to [a certain defendant’s] product.” This mere possibility was not enough. Therefore, the Court granted the defendants’ motions for summary judgment ruling Kahle failed to establish which defendant’s “product proximately caused the decedent’s injuries.”

This case instructs that while a plaintiff may be able to survive a defendant’s motion to dismiss when he or she files suit against “alternative” product manufacturers, courts may not be so lenient after discovery is complete and the plaintiff is still not able to establish which defendant manufactured the product that allegedly caused the plaintiff’s injuries.